Annulment of Marriage in SA

Annulment of a marriage

Annulment is a legal process that declares a marriage to be invalid and void as if it had never taken place. There are two types of marriages that may be annulled by the court: void marriages, which are not legally valid at all, and voidable marriages, which are legally valid until the court declares them to be invalid.

If you are in a void marriage, it is not necessary to go to court to obtain a decree of nullity. You can simply move on with your lives. However, it may be helpful to obtain a declaratory order stating that the marriage is void in order to provide certainty and proof, particularly when separating your affairs. A declaratory order simply confirms that the marriage was never legally valid.

Void Marriages

Void marriages are those that are not legally valid from the start. The following types of marriages are considered void in South Africa:

1. Informal marriages that are not conducted in accordance with the legal requirements of the Marriage Act of 1961.
2. Marriages officiated by someone who is not properly appointed as a Marriage Officer.
3. Marriages that are celebrated in the absence of witnesses.
4. Marriages between people who are related to each other within the prohibited degrees of relationship, such as a father and daughter, mother and son, or siblings (full or half). Note: marriage between cousins is not prohibited.
5. Marriages in which one of the parties is already married to a third person.
6. Marriages involving a male under the age of 18 or a female under the age of 15 without the consent of the Minister of Home Affairs.
7. Marriages involving an insane person.
8. Marriages made under certain operative mistakes, such as a mistake about the nature of the transaction (e.g., one or both parties thinking it was an engagement ceremony instead of a marriage) or a mistake about the identity of one or both parties.

Voidable marriages

Voidable marriages are those that are legally valid until they are annulled by the court. The following types of marriages are considered voidable in South Africa:

1. Marriages entered into without the prior consent of the minor's parents or guardian. An application to annul the marriage can be made by the minor within three months of becoming an adult (18 years old), by the parents or guardian within six weeks of the marriage, or by the minor.
2. Marriages entered into under duress (threats, force, intimidation, etc.) by the party who acted under duress.
3. Marriages that are voidable due to fraud (a misrepresentation that induced the marriage) by the party who was misled by the fraud.
4. Marriages entered into when the woman is pregnant by a third party at the time of the marriage without the knowledge of her husband. In this case, it appears that only the husband can set the marriage aside, although it is possible that in light of progress towards gender equality, the wife may also be able to apply to have the marriage annulled if she was unaware of the pregnancy at the time of the marriage.
5. Marriages in which one of the parties is impotent at the time of the marriage. An application to annul the marriage can be made by either party.

Divorce vs Annulment

Ending a marriage is often a complex and difficult process, whether through divorce or annulment. Divorce involves the legal dissolution of a marriage and the division of shared assets between the two parties. Annulment, on the other hand, involves the declaration that the marriage was never legally valid and the erasure of any legal record of the marriage. However, obtaining an annulment is not always possible, as it is only available under specific circumstances outlined in the Marriage Act of 1961. Both divorce and annulment require the court's consideration and approval, but anyone seeking to end their marriage may apply for a divorce.

Who can apply for an annulment?

To be eligible for annulment, your marriage must meet certain criteria. These may include being underage or mentally incapacitated at the time of the marriage, entering into the marriage under fraudulent circumstances, or having the ceremony conducted by someone not legally recognized to perform weddings. The courts will consider these and other specific factors when determining whether an annulment is possible.

Void vs voidable marriages

In the context of annulment, void and voidable marriages refer to different types of marriages that may be eligible for annulment. A void marriage is one that was never legally valid in the first place, such as a marriage between partners who are already married (with some exceptions for traditional polygamous marriages) or a marriage between underage individuals without parental consent. No formal declaration of annulment is necessary for a void marriage, as it was never recognized as legal. However, some people may still seek a court ruling in order to avoid any potential legal complications in the future.

A voidable marriage, on the other hand, is a legally valid marriage that may be annulled due to misrepresentation, fraud, or coercion by one of the parties at the time of the wedding. In these cases, a hearing must be held in court and a ruling will be issued by a judge. Voidable marriages may be annulled if the court determines that they meet the criteria for annulment.

What are the differences between void and voidable marriages?

Void marriages are those that were never legally valid to begin with, such as a marriage between partners who are already married (with some exceptions for traditional polygamous marriages) or a marriage between underage individuals without parental consent. Voidable marriages are legally valid marriages that may be annulled due to misrepresentation, fraud, or coercion by one of the parties at the time of the wedding.

How do I know if my marriage is void or voidable?

You can determine whether your marriage is void or voidable by considering the specific circumstances of your marriage and how it fits into the criteria for void or voidable marriages under South African law. For example, if your marriage was entered into under fraudulent conditions or was conducted by someone not legally recognized to perform weddings, it may be considered voidable. If your marriage was between partners who were already married or underage without parental consent, it may be considered void.

Can I get an annulment if my marriage is voidable?

If your marriage is voidable, you may be eligible for an annulment. However, this will depend on the specific circumstances of your marriage and whether they meet the criteria for annulment under South African law. A hearing will be held in court and a ruling will be issued by a judge.

Do I need to get a formal declaration of annulment for a void marriage?

Technically, a formal declaration of annulment is not necessary for a void marriage, as it was never recognized as legally valid. However, some people may still seek a court ruling in order to avoid any potential legal complications in the future.

Can I get a divorce if my marriage is void or voidable?

If your marriage is void or voidable, you may be eligible for an annulment rather than a divorce. However, if you do not meet the criteria for annulment, you may be able to obtain a divorce instead. It is important to consider your specific circumstances and seek legal guidance to determine the most appropriate course of action.